Judge Allows Unusual Bid to Get Data From Census

By DAVID E. ROSENBAUM

Published: January 26, 2002

WASHINGTON, Jan. 25 &#0151; In a ruling that could limit the data government agencies can withhold from Congress, a federal judge in California has held that the Bush administration must give Democrats in the House access to census figures the administration wants to keep secret.

The judge, Lourdes G. Baird of the United States District Court for the Central District of California, in Los Angeles, based her decision on an obscure provision of a 1928 law called the Seven Member Rule. The law, which has never been applied, specifies that government agencies must turn over information if it is requested by seven members of the House Government Reform Committee or five members of the Senate Governmental Affairs Committee.

The administration is expected to appeal the decision, which was issued on Jan. 18, and the matter may ultimately be decided by the Supreme Court.

Mark J. Rozell, a professor of politics at Catholic University and a specialist in the area of government secrecy, said that if the decision was upheld, members of the minority party in Congress could gain access to much more information than they get now.

The ruling would apparently not affect the question of whether the administration must give Congress the records of Vice President Dick Cheney's energy task force, Mr. Rozell said.

In that case, the administration maintains that the General Accounting Office, Congress's auditing arm, has no authority to have the information.

As a practical matter, the Seven Member Rule benefits the minority party in Congress. The majority can seek information simply by issuing a subpoena.

After the 2000 census count was made, the Census Bureau conducted a survey of 314,000 households and determined that 12.5 million people had been missed by the regular count or counted twice. Those missed tended to be poor and were often members of minorities. Those counted twice were mostly white homeowners.

The Bush administration, over the objection of most Democrats, decided last year to use the raw head count and not the adjusted figures for redrawing Congressional districts and distributing government aid.

In April, Representative Henry A. Waxman of California, the ranking Democrat on the Government Reform Committee, asked the Census Bureau for the adjusted figures for states, counties and even neighborhoods. The bureau refused on the ground that the figures were flawed.

Mr. Waxman and 17 other Democrats on the committee then filed suit under the Seven Member Rule.

The law states that if seven members of the House committee, called the Government Operations Committee until the last decade, or five members of the Senate committee make a request, a government agency "shall submit any information requested of it relating to any matter within the jurisdiction of the committee."

Judge Baird said the law was so specific that she had no alternative but to rule the way she did. She implied that she might have ruled differently if material had been withheld on the grounds of national security, law enforcement requirements or the privacy of internal deliberations &#0151; the typical grounds for what is called executive privilege &#0151; but in the case of census figures, none of those grounds could plausibly be claimed.

The administration argued that the court lacked jurisdiction because what was at issue was a political dispute between the other two branches of the government. Judge Baird rejected that view.

In an interview today, Mr. Waxman said that if the ruling was upheld, the Seven Member Rule could become "an important tool for the public's right to know."